Proposition 36 and Drug Treatment
With the passage of Proposition 36 in 2000, California Courts are required
to grant probation and drug treatment to any individual convicted of a
"nonviolent drug possession offense" and prohibits incarceration
in a county jail as a condition of probation. "Drug possession"
includes the possession of illegal substances as well as the possession
of medication without a lawful prescription.
Forging a Doctor's Prescription to Obtain Norco, Vicodin, Xanax, Percocet
In 2005, an individual went to a pharmacy and dropped off a prescription
for Vicodin. When the pharmacist called the doctor to verify the prescription,
he was told that it was fake and that the doctor did not issue it. The
pharmacist called the police who arrested the suspect. The suspect eventually
entered a plea of guilty to
issuing or forging a
prescription for a narcotic drug in violation of Health and Safety Code section 11368.
At sentencing, he told the judge that for a number of medical reasons,
he was addicted to prescription pills, abused Vicodin, Oxycontin, Percocet
and takes more than 90 pills per month. He requested that the judge sentence
him to complete drug treatment and rehabilitation because forging a prescription
is a "nonviolent drug possession offense". The Court denied
his request and sentenced him to jail instead. He then appealed contending
that the Court erred in ruling that his offense was not eligible for drug
treatment. The Court of Appeal agreed with the sentencing judge and concluded that
prescription in violation of section 11368 does not meet the statutory definition of
a "nonviolent drug possession offense" as required for treatment
under Proposition 36.
The crime of
forgery within the meaning of section 11368 at issue is not
simple drug possession. Even when the drugs are for personal use, section 11368
is directed at a greater problem than just possession and personal use
of the prescription medications. It is primarily directed at the
forgery of the prescription. Prescriptions are devices by which physicians and other authorized practitioners
work to achieve legitimate medical purposes. The protection of the health
and safety of the public in
prescriptions is critical. Physicians, pharmacists, and patients must be able to rely
on the integrity of the system. Section 11368 is aimed at helping preserve
that integrity by prohibiting counterfeiting of a physician's authority
to prescribe, deceiving of the pharmacist, corrupting the public's
legitimate supply of medicine, and, potentially, defrauding of insurance
companies or government programs. Far more is implicated than just an
offender's personal involvement with drugs. Even though section 11368
is not necessarily "commercial in nature like the "sale, production,
or manufacturing" offenses that are expressly excluded by Penal Code
section 1210, subdivision (a), neither is it a
simple drug possession or drug use offense.
The Court of Appeals concluded that
forgery of a
prescription in violation of section 11368, even when intended to obtain drugs entirely
for personal use, does not come within the term "nonviolent drug
possession offense" as defined by Penal Code section 1210, subdivision (a).
We Can Help!
If you or a loved one has been arrested for prescription forgery in Temecula,
Murrieta, Hemet, Lake Elsinore, Menifee, Wildomar, Perris, Banning, Corona
or Riverside, we can help! Even in the face of what might seem as overwhelming
obstacles, we have successfully negotiated with prosecutors to allow individuals
to obtain the treatment they need. Call our office for a free and confidential